ML073100765
| ML073100765 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 10/29/2007 |
| From: | Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS 14615 | |
| Download: ML073100765 (8) | |
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October 29, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Panel DOCKETED USNRC In the Matter of
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OFFICE OF SEC Entergy Nuclear Generation Company and )
Docket No. 50-293-LR RULEMAKING Entergy Nuclear Operations, Inc.
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ASLBP No. 06-848-02-LR ADJUDICATION
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(Pilgrim Nuclear Power Station)
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ENTERGY'S ANSWER OPPOSING PILGRIM WATCH'S MOTION TO EXTEND ALL HEARING DEADLINES BY A MINIMUM OF AT LEAST THIRTY (30) DAYS Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. ("Entergy")
hereby answer and oppose Pilgrim Watch's motion to reset the hearing schedule and to extend all deadlines by a minimum of 30 days.' Pilgrim has not shown good cause to extend the hearing date (currently scheduled for February 26, 2008). Further, extending that date would be inconsistent with the milestones in the NRC rules and would delay issuance of the renewed license unduly. While certain intermediate deadlines may need to be adjusted in light of the new date established by the Board for identification of witnesses, sufficient time exists between the deadlines in the current schedule to accommodate this adjustment without affecting the February 26 hearing date. Therefore, an extension of the hearing date is unwarranted.
The Board's December 20, 2006 Order2 established the following schedule leading to the February 26 hearing:
0 October 30, 2007 - Deadline for filing of final witness lists.
Pilgrim Watch's Motion Requesting that the Order Establishing the Schedule for the Proceedings be Reset to Extend All Deadlines for Filings at Minimum Thirty (30) Days (Oct. 17, 2007) ("Motion").
2 Order (Establishing Schedule for Proceeding and Addressing Related Matters) (Dec. 20, 2006).
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December 3, 2007 - Simultaneous filing of statements of position, written direct testimony and exhibits under 10 C.F.R. § 2.1207(a)(1).
December 17, 2007 - Simultaneous filing of rebuttal testimony and exhibits.
January 7, 2008 - Deadline for proposed questions for judges to pose to witnesses under § 2.1207(a)(3).
January 7, 2008 - Deadline for motions for cross-examination, with cross-examination plan.
January 7, 2008 - Deadlines for any motions in limine.
January 14, 2008 - Deadline for responses to motions to cross-examine and motion in limine.
February 26, 2008 - Begin hearing.
On October 17, 2007, the Board extended the deadline for filing of final witness lists relating to Contention I to November 30, 2007.3 The Board, however, deferred any ruling on further changes in the schedule until after Entergy and the Staff had responded to Pilgrim Watch's Motion. Id. at 1-2. With respect to Contention 3 which is subject to pending summary disposition motions, the Board also stated:
With regard to the witness list deadline relating to Contention 3, we will address this and any other scheduling matters relating to it as deemed appropriate, either with our ruling on Entergy's Motion for Summary Disposition of that contention, which we expect will be issued in the near future, or after receipt of the responses of the other parties to Intervenors' pending motion.
Id. at 2.
Based on the Board's initial schedule, Entergy submits that any extension of the February 26 hearing date is unwarranted. The schedule established by the Board's December 20, 2006 Order contains ample time between filing deadlines to accommodate adjustment of the initial deadline without delaying the hearing itself. For example, the six weeks between the deadline 3 Order (Extending Deadline for Filing Witness Lists Regarding Contention 1) (Oct. 17, 2007) ("October 17 Order")
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for responses to motions to cross examine and motions in limine (January 14, 2008) and the beginning of the hearing (February 26, 2008) can be shortened. Typically, motions in limine are filed a couple of weeks before the hearing with responses filed shortly thereafter.4 Thus, allowing two weeks between the deadline for filing the responses to motions in limine and motions to cross examine and the commencement of hearing is sufficient.
Likewise, the time frame for preparing testimony following the identification of witnesses (of almost five weeks) is generous. When a party identifies its witnesses, that party is required under the NRC rules to provide a copy of the analysis or other authorityupon which the witnesses base their opinion. 10 C.F.R. § 2.336 (a)(1). Thus, testimony needs to be fairly shaped by the time the witnesses are identified in order to provide the information required by the Commission's rules of practice.
Accordingly, Entergy believes that the schedule can be adjusted without extending the date for hearing. Entergy proposes that a reasonable schedule would be as follows:
November 30, 2007 - Deadline for filing of final witness lists.
December 21, 2007 - Simultaneous filing of statements of position, written direct testimony and exhibits under 10 C.F.R. § 2.1207(a)(1).
January 14, 2007 - Simultaneous filing of rebuttal testimony and exhibits.
January 28, 2008 - Deadline for proposed questions for judges to pose to witnesses under § 2.1207(a)(3).
January 28, 2008 - Deadline for motions for cross-examination, with cross-examination plan.
January 28, 2008 - Deadlines for any motions in limine.
February 4, 2008 - Deadline for responses to motions to cross-examine and motion in limine.
4 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation, Order (General Schedule Revision and Other Matters) (Feb. 2, 2000) (unpublished) at Attachment A (motions in limine filed less than three weeks before the commencement of hearings).
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February 26, 2008 - Begin hearing.s This proposed schedule allows three weeks between the responses to the motions in limine and the commencement of hearing, and is consistent with the Board's original schedule and the schedule commitments made by the Board and the parties.
Accordingly, Entergy opposes Pilgrim Watch's request to extend all deadlines by 30 days. Such a unilateral extension of the schedule is unwarranted for the reasons set forth above.
Pilgrim Watch fails to demonstrate good cause for its sweeping request, as required by 10 C.F.R. § 2.307(a). Pilgrim Watch's claimed lack of resources to (Motion at 2-3) does not constitute good cause. It is well longstanding NRC policy that an intervenor in a licensing proceeding must come prepared to present, support and defend its case, and adhere to schedules.
See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C.
18, 21 (1998) ("parties to a proceeding.., are expected to adhere to the time frames specified in the Rules of Practice in 10 C.F.R. Part 2 for filing and the scheduling orders in the proceeding").
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 454 (1981)
("the fact that a party may... possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations"); Wisconsin Electric Power Co. (Point Beach Nuclear Power Plant, Unit 1), ALAB-696, 16 N.R.C. 1245, 1261 n.29 (1982). Thus, when Pilgrim Watch undertook intervention in the Pilgrim license renewal proceeding, it Entergy is filing today a motion requesting reconsideration of the Board's decision in LBP-07-12 denying summary disposition of Pilgrim Watch 1. In accordance with customary practice, Entergy's motion for reconsideration should be considered in parallel with preparing for hearing in accordance with the schedule established by the Board.
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undertook as well the obligation to prepare and file pleadings and produce and prepare expert witnesses in timeframes set by the schedule established by the Board.6 Furthermore, as stated by the Commission in its Statement of Policy on Conduct of Adjudicatory Proceedings, while extensions may be granted under some circumstances, "this should be done only when warranted by unavoidable and extreme circumstances." 48 N.R.C. at 21 (emphasis added). Pilgrim Watch has made no showing of unavoidable and extreme circumstances warranting delay of the hearing beyond its scheduled date of February 26, 2008.
Thus, its request must be denied.
Finally, Pilgrim Watch's request is inconsistent with the model milestones in 10 C.F.R. Part 2, App. B, which calls for commencement of a hearing in a Subpart L proceeding within 175 days after the SER and FEIS. Here, the SER addressing the subject matter of PW Contention 1 was issued on July 1, 2007, and the FEIS addressing the subject matter of PW Contention 3 was issued on July 27, 2007.
The February 26 hearing date already exceeds the model milestone and should not be extended further. Currently, issuance of the renewed operating license for Pilgrim is awaiting only completion of the hearing process, and therefore any undue delay in the hearing schedule will affect timely license issuance.
In short, for the reasons set forth above, Entergy opposes Pilgrim Watch's request to extend all deadlines for filings at a minimum of thirty (30) days. Ample time exists between the Pilgrim Watch's further claim that, because the applicant has a legal staff and funds to hire experts, meeting scheduled deadlines for the applicant is "less onerous" is presumptuous and incorrect. The applicant and its legal staff and experts have a plethora of other responsibilities to which they are obligated to attend. In contrast, Pilgrim Watch appears wholly dedicated to intervention in this particular license renewal proceeding. See www.pilgrimwatch.org. Pilgrim Watch's motto is "Time is up! Unplug Pilgrim."
A supplement to the SER was issued on October 3, 2007, but is unrelated to either contention and therefore should not affect the hearing schedule.
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deadlines in the current schedule to accommodate adjustments for the identification of witnesses and the filing of testimony without extending the February 26 hearing date.
For all of the foregoing reasons, Pilgrim Watch's Motion should be denied.
Respectfully Submitted, David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.
Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Dated: October 29, 2007 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station)
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Docket No. 50-293-LR ASLBP No. 06-848-02-LR CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Answer Opposing Pilgrim Watch's Motion to Extend All Hearing Deadlines by a Minimum of Least Thirty (30) Days" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 2 9 th day of October, 2007.
- Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 amy@nrc.gov
- Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 pbagnrc.gov Office of Commission Appellate Adjudication Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
- Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 rfcl (1nrc.
gov
- Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop 0-16 C I U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 secy(anrc.gov; hearingdocket(anrc. gov Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
- Susan L. Uttal, Esq.
- Andrea L. Silvia, Esq.
- David E. Roth, Esq
- Kimberly A. Sexton, Esq.
Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 slu(anrc.gov; alcl @nrc.gov; der@nrc.gov; KAS2(dnrc.gov
- Ms. Mary Lampert 148 Washington Street Duxbury, MA 02332 mary-lampert@comcast.net
- Mr. Mark D. Sylvia Town Manager Town of Plymouth 11 Lincoln St.
Plymouth MA, 02360 msvlvia(~townhall.nlvmouth.ma.us
- Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street P.O. Box 2824 Duxbury, MA 02331 nord@town.duxbury.ma.us
- Sheila Slocum Hollis, Esq.
Duane Morris LLP 1667 K Street, N.W.
Suite 700 Washington, D.C. 20006 sshollis(aduanemorris. com
- Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332 macdonald@town.duxbury.ma.us David R. Lewis C---ZzzzI 2